BVA9503207
DOCKET NO. 92-16 420 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased disability evaluation for
spondylolisthesis, currently evaluated 20 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
J. F. Gussio, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1978 to
August 1983.
This appeal to the Board of Veterans' Appeals (Board) arises from
a March 1992 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The case was remanded to the RO in September 1993.
The veteran claims that he had active service prior to January
1978. He claims that he served from July 1970 to August 1983.
Service prior to January 1978 has not been verified by the
service department. Although the veteran's service prior to
January 1978 has not been verified, service verification of his
previous service is not pertinent to the issue on appeal.
Service connection for the claimed disability has already been
established and such verification would unnecessarily delay the
veteran's appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected spondylolisthesis
has increased in severity and warrants a higher rating. He
claims that he has increased back pain and limitation of motion
that effects his ability to work. He claims that he takes
medication and uses a TENS unit for the pain. He also claims
that he sees a chiropractor on a regular basis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence supports the grant of a 40 percent
disability rating for his service-connected spondylolisthesis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.
2. The veteran's service-connected spondylolisthesis is
manifested by chronic back pain and severe limitation of motion.
CONCLUSION OF LAW
A 40 percent evaluation for the service-connected
spondylolisthesis is warranted. 38 U.S.C.A. §§ 1155, 5107 (b)
(West 1991); 38 C.F.R. §§ 4.3, 4.40, 4.59 and
Part 4, Code 5292 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a) (1991). That is, he has presented a claim
which is plausible. The Board is satisfied that all relevant
facts have been properly developed. The case was remanded to the
RO in September 1993 to obtain private treatment records from
Larry Marti, M.D., and W. Darnell Ray, D.C. The RO was further
instructed to obtain any additional VA treatment records since
January 1992 and schedule the veteran for a VA examination.
Additional treatment records were received from W. Darnell Ray,
D.C., and the VA. The veteran was also examined by the VA in
April 1994. The RO attempted to obtain the treatment records
from Dr. Marti, but the attempt was fruitless. The Board is of
the opinion that further attempts by the RO to obtain
Dr. Marti's treatment records would be futile. Accordingly, all
relevant evidence necessary for an equitable disposition of the
veteran's appeal has been obtained by the RO to the extent
possible. No further assistance to the veteran is required in
order to comply with the duty to assist him as mandated by 38
U.S.C.A. § 5107(a) (West 1991).
Service connection for spondylolisthesis was established
effective August 1983 and assigned a 10 percent disability rating
at that time. In March 1992, the RO increased the veteran's
disability rating from 10 percent to 20 percent effective May
1991. The veteran now claims that his service-connected
spondylolisthesis has increased in severity and warrants a higher
rating.
The veteran's service medical records reveal that he injured his
low back in 1981. Multiple complaints of low back pain were
noted following the injury. On the Medical Board evaluation in
May 1983, the diagnosis was Grade II spondylolisthesis. The
veteran was discharged unfit for duty.
On VA examination in September 1983, the veteran complained of
constant low back pain that radiated down the left thigh and leg.
Examination of the back revealed the vertebral alignment was
normal. There was no paraspinal spasm or localized tenderness.
Flexion of the lumbosacral spine was to 90 degrees. Extension
was to 45 degrees. Lateral bending to the left and right was 50
degrees. Rotation was normal. Examination of the lower
extremities revealed no abnormal findings. X-rays of the
lumbosacral spine revealed spondylolisthesis at L5-S1. The
diagnosis was spondylolisthesis, Grade II, with neuropathy by
history.
On VA orthopedic examination in September 1985, the veteran
reported no complaints of the back. Examination revealed a lower
thoracolumbar scoliosis with convexity to the left. There was no
localized tenderness or paraspinal spasm. He had full range of
motion in the lumbosacral area. X-rays of the lumbosacral spine
revealed spondylolytic spondylolisthesis with degenerative
arthritis at L5-S1 and scoliosis. The diagnoses were
spondylolisthesis, symptomatic, by history, probably unchanged
since past examination, and lumbosacral scoliosis.
In a private report dated in June 1990, W. Darnell Ray, D.C.,
stated that he had treated the veteran for low back pain and
numbness in his legs since 1984. In June 1990, the diagnoses
were moderate anomalies sacralization of L5 vertebra, uneven leg
length and moderate degenerative lumbar disc, and mild
compression of the lumbar root.
On VA examination in October 1990, the veteran complained of
frequent lumbar and limitation of motion. Physical examination
revealed he had L5-S1, and L4-L5 accentuating tenderness
bilaterally. Range of motion of the low back revealed flexion
was to 82 degrees, extension was to 30 degrees, lateral flexion
was to
35 degrees in each direction, and rotation was normal in each
direction. Straight leg raising was negative, bilaterally. His
motor strength was 5/5 for knee extension, plantar flexion and
dorsiflexion, both sides. His reflexes were 2 plus at the knees
and ankles, bilaterally. He had normal sensation to touch
throughout both lower extremities. He was able to walk on his
heals and toes without difficulty. X-rays of the lumbar spine
revealed lumbar scoliotic deformity, probably secondary to
developmental abnormality of L2; otherwise, the examination was
negative. The diagnoses were congenital abnormality of the spine
and chronic low back pain.
VA outpatient treatment and hospital records from January 1991 to
January 1992 reveal that the veteran was treated for low back
pain. He was admitted to the hospital for one day in July 1991
and subsequently hospitalized from May to June 1991 for
complaints of low back pain. He was provided a TENS unit and
prescribed physical therapy and medication. The diagnosis was
low back pain.
In a private statement dated in May 1992, W. Darnell Ray, D.C.,
stated that the veteran would continue to have pain in his back
due to the osseous anomalies and structural weakening of the
lumbosacral joint. This would be aggravated by stress, fatigue,
or lifting. His treatment was for prevention of future
degeneration of affected joints.
On the VA spinal examination in May 1992, physical examination
revealed a normal gait and no obvious back deformities. Lower
extremity strength was 5/5 in all muscle groups, bilaterally.
The straight leg raising was negative, bilaterally. Back flexion
and extension were 65 degrees and 30 degrees, respectively. Left
and right lateral flexion were to 35 degrees, bilaterally. There
was minimal lumbosacral tenderness. The neurological examination
was normal. The diagnosis was spondylolisthesis, currently very
stable, with no evidence of major nerve compression, and slightly
diminished back range of motion.
VA outpatient treatment records from January 1992 to February
1994 reveal that the veteran received physical therapy for low
back pain. In July 1993, the diagnosis was low back pain,
secondary to spondylolisthesis.
On VA examination in April 1994, the veteran's complaints
consisted of popping and clicking in his back, back pain that was
aggravated with activity, and pain and weakness that radiated
down his left leg. He reported that he was seen by a
chiropractor with some improvement. Physical evaluation of the
back revealed that there were no postural abnormalities, fixed
deformities, or defects in the musculature of his back. Range of
motion of the low back revealed forward flexion was to
approximately 80 degrees, backward extension was to approximately
15 degrees, lateral flexion both to the right and to the left was
to approximately 10 degrees. He had a trigger point which was
painful on the left at approximately L3 and L4. There appeared
to be no evidence of neurological involvement. X-rays of the
lumbosacral spine revealed Grade II spondylolisthesis with
spondylolysis at the L5-S1, associated vacuum disc, and unchanged
lumbar scoliosis and mild osteophytosis. The diagnoses were
chronic low back pain and Grade II spondylolisthesis.
The veteran's representative argues that the findings on the most
recent VA examination warrants the assignment of a 40 percent
disability rating under Diagnostic Code 5293. The veteran's
service-connected spondylolisthesis, however, is rated under Code
5295 for lumbosacral strains. In the alternative, his service-
connected spondylolisthesis may be evaluated on the basis of
limitation of motion of the low back under Code 5292.
In general, disability evaluations are intended to compensate for
the average impairment of earning capacity resulting from a
service-connected disability. They are primarily determined by
comparing objective clinical findings with the criteria set forth
in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4, (1992).
Moderate limitation of motion of the lumbar segment of the spine
warrants a
20 percent evaluation. A 40 percent evaluation requires severe
limitation of motion. 38 C.F.R. Part 4, Code 5292.
A 20 percent evaluation is warranted for moderate intervertebral
disc syndrome with recurring attacks. A 40 percent evaluation
requires severe intervertebral disc syndrome with recurring
attacks with intermittent relief. A 60 percent evaluation
requires pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy and little
intermittent relief. 38 C.F.R. Part 4, Code 5293.
A 20 percent evaluation is warranted for lumbosacral strain where
there is muscle spasm on extreme forward bending and unilateral
loss of lateral spine motion in a standing position. A 40
percent evaluation requires severe lumbosacral strain manifested
by listing of the whole spine to the opposite side, a positive
Golthwaits's sign, marked limitation of forward bending in a
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of the joint space. A 40
percent evaluation is also warranted if only some of these
manifestations are present if there is also abnormal mobility on
forced motion. 38 C.F.R. Part 4, Code 5295.
To warrant the higher (40 percent evaluation), the evidence would
have to show either severe limitation of motion (5292), or severe
intervertebral disc syndrome with recurring attacks with
intermittent relief (5293), or severe lumbosacral strain
manifested by listing of the whole spine to the opposite side, a
positive Golthwaits's sign, marked limitation of forward bending
in a standing position, loss of lateral motion with
osteoarthritis changes, or narrowing or irregularity of the joint
space (5295).
On the most recent VA examination in April 1994, range of motion
of the low back revealed forward flexion was to approximately 80
degrees, backward extension was to approximately 15 degrees, and
lateral flexion both to the right and to the left was to
approximately 10 degrees. Such clinical findings reflect severe
limitation of motion under Code 5292. Thus, particularly when
the provisions of 38 C.F.R. § 4.40 (functional loss) and § 4.59
(painful motion) are considered, a 40 percent disability rating
is warranted pursuant to Code 5292. However, the criteria for a
higher schedular rating under Codes 5292, 5293, or 5295 have not
been met.
Consideration has also been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). In particular, we find that
the evidence discussed above does not suggest that the veteran's
service-connected spondylolisthesis presents such an exceptional
or unusual disability picture as to render impractical the
application of the regular schedular standards so as to warrant
an assignment of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) (1993). For example, the disability did not
recently require frequent periods of hospitalization, nor does it
present marked interference with employment that has not already
been contemplated by the current evaluation.
ORDER
A 40 percent disability rating for the veteran's
spondylolisthesis is granted, subject to the regulations
governing the payment of monetary benefits.
J. U. JOHNSON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
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NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.